Litigation Mitigation

Litigation is distracting, emotional, costly and is never guaranteed of success. So, firstly, let’s first talk about how to avoid it, as best you can.

The best advice we can give to people and businesses is to not enter into any agreement or relationship without having considered your legal position with your solicitor.

Here are some examples of litigation-mitigation steps you can take, to ensure that the prospect of expensive and time-consuming litigation is greatly reduced.

Commercial contracts: if you are a supplier with your own contract, know its terms and conditions. Complete it properly for your customer, including inserting any special conditions. Have it signed by the correct parties.

Customer of a commercial supplier: take time to fully familiarise yourself with the terms of the contract before signing, and always feel free to ask questions about its contents and request changes to any clauses that you might find unnecessarily disadvantage you. It may be that you need legal advice and, usually, for a relatively small cost, this can be obtained.

Property purchaser: there are standard contracts for buy and sell both in Queensland and New South Wales, with the latter being fundamentally different to the former. Seek legal advice, if you are a purchaser in New South Wales.

Personal relationships: the asset-and-liability split if the new relationship ends can be covered in contracts known as Binding Financial Agreements. Legal certification for each party is a must if the agreement is to be considered binding by the court.

Lender or borrower: make sure you have signed a loan agreement, which clearly sets out the terms and conditions of repayment, especially where it is a loved one who is the borrower or the lender.

Steps in Litigation

Negotiate a settlement: the first thing is determine if the other party to your complaint is prepared to negotiate in good faith on a ‘without prejudice basis’, to settle the matter (which, if successful, should be documented by a solicitor.)

What forum: if genuine attempts to settle the dispute or claim are not successful, you need to determine in which forum you need to file your proceedings. Many, but not all, disputes can be commenced before the Queensland Civil Administrative Appeals Tribunal (QCAT) or its NSW equivalent, NCAT. The websites of these organisations set out the requirements for both plaintiffs and defendants, if they are to either prosecute or defend an action. These are usually significantly-more-cost-effective forums than using the courts’ systems.

Statement from you: if your solicitor has to file a Claim or Defence, he/she will want to take a detailed statement from you, so as to ensure that  he/she is in possession of all the facts which you allege, thereby removing the need to make potentially expensive applications to the court to amend filed proceedings. These applications could well be opposed by the other side and the magistrate or judge may not grant them, anyway.

Drafting your claim or defence: if you have to prosecute an action (plaintiff) or defend one (defendant) in the courts, then be very aware of time limits. Plaintiff’s should not waste their time commencing their actions without seeing a solicitor and having the drafting of the Statement of Claim prepared for them for filing. Likewise for a defence to an action. There are strict technical rules about the contents of a Statement of Claim and a Defence that, if not complied with, may see your claim or defence knocked out by the presiding Magistrate or Judge, with costs being awarded against you, so a solicitor’s input is vital.

Further steps: the steps thereafter in litigation are many and varied. They can also be drawn out and are expensive, relative to settling the matter or it being handled in QCAT or NCAT.

Solicitors costs: your solicitor is bound by the Solicitors’ Rules to give you an understanding of your prospects for success based on the statement you have given, the steps and costs involved in prosecuting or defending your claim, and to the commit this to a Costs Agreement, albeit that it may only be a best estimate.

Always be commercial: it is only after your solicitor advises your prospects of success that you can determine if the costs of being a plaintiff or a defendant are commercially worth the distractions and the emotions involved in what can be a drawn out and risky exercise. In many instances, your solicitor will advise you to seriously consider making an offer to settle the matter, given his or her experience in the likely results of court decisions. This experience includes that, even if you win, you are likely to receive a costs-award for much less than your actual legal costs. Likewise if you lose, you will be ordered to pay the plaintiff’s costs and interest and this can be substantial. At all times during proceedings, you should have a commercial eye on the costs of settlement as opposed to the legal costs of proving your position.

Cost Free Initial Consultation

If you are interested in knowing more about how we might be able to assist you, please call
07 5536 3055 to make a cost free initial, 40 minute consultation with our Principal, Mr Jim Wilson.